With an election brewing, plaintiffs trying to impact climate change may find themselves lobbying politicians rather than running to the nearest courtroom. On September 21, 2012, the Ninth Circuit further slammed the door on the ability for such claims to succeed in federal court. Specifically, the Court held that federal common law public nuisance claims are unavailable to parties seeking damages or injunctive relief based on global warming. Native Village of Kivalina v. ExxonMobil Corp., 2012 U.S. App. LEXIS 19870 (9th Cir. 2012). In this case, the Native Village of Kivalina and the City of Kivalina filed federal common law public nuisance claims (among others) against twenty-two oil, energy, and utility companies alleging that greenhouse gas emissions caused by Defendants have resulted in global warming impacts to the Village and City. Kivalina appealed the case to the Ninth Circuit following the district court’s dismissal of its claims for lack of subject matter jurisdiction.

The Ninth Circuit affirmed the district court’s holding and dismissed Kivalina’s federal common law public nuisance claims, explaining that “claims can be brought under federal common law for public nuisance only when courts are “compelled to consider federal questions which cannot be answered by federal statutes alone.” In other words, federal common law cannot apply when congressional legislation directly speaks to an issue. To make this determination, the Court relied on the recent Supreme Court decision in Connecticut v. Am. Elec. Power Co., Inc., 131 S. Ct. 2527 (2011) in which the Supreme Court concluded that the Clean Air Act provides a means to seek limitations on greenhouse gases, and thus, displaces any federal common law right to seek abatement of greenhouse gases. While AEP focused on the abatement of emissions (i.e. injunctive relief), the Ninth Circuit’s holding significantly broadened AEP by applying this analysis equally to claims for damages.

Accordingly, the combination of Kivalina and AEP seems to bar future federal public nuisance claims for damages or injunctive relief based on global warming, and is likely to be a significant deterrent if not a complete bar to such claims being filed in federal court. Significantly though, the Ninth Circuit did not address Kivalina’s state claims, and thus, it is possible that Kivalina will pursue those claims in state court. State courts are likely to become the next battleground (in this action or in similar actions) to determine whether parties can assert similar public nuisance claims under state law, or if plaintiffs will need to wait for legislation to address climate change and forego any type of damage recovery.

The new IOM report, Breast Cancer and the Environment: A Life Course Approach, again emphasizes the difference between how scientific panels go about making a causal inference and the approach too often approved of by credulous judges often insecure about their own ability to think critically and mesmerized by the jargon-laden pronouncements of credentialed experts. Beginning on page 82 under "Hierarchy of Studies" and followed by "Categories of Evidence" the report does a great job of detailing what counts as evidence and the methods and criteria used by organizations like the International Agency for Research on Cancer, the National Toxicology Program, the World Cancer Research Fund / American Institute for Cancer Research in going about collecting, assessing and weighing evidence when making causal judgments. They even put together a helpful summary of the classification systems (see Appendix C, "Classifications Systems Used in Evidence Reviews" at page 312).

Here are a couple of takeaways:

(1) "The criteria aim to be explicit about the weight, or relative importance, given to studies in humans and in animals or other experimental systems"; and

(2) "Strong and consistent positive epidemiologic evidence in rigorously conducted studies is prima facie evidence that the substance is a risk factor." You will quickly note upon reviewing the summary of systems of causal inference that none support anything like the notion embraced by the court in Milward v. Acuity that an expert weighing a subset of the data (each piece of which is either weak, irrelevant or inconsistent) upon the scales of his personal scientific judgment can by "reasoning to the best explanation" reliably reach a causal inference - especially in the complete absence of any epidemiological evidence to support it. Indeed the "atomization" of evidence decried by the Milward court and those in the "public health movement" who promote mass tort litigation is exactly what IARC, IOM, NTP, EPA and WCRF/AICR do - they assess each piece of evidence, they do it transparently, they do it according to rules laid down before they even go looking for the evidence and then they weigh what's left; again, according to weighting systems that are explicit, consistent and established before the first piece of evidence is examined.

The idea that knowledge comes from scientists taking a "holistic approach to the data" and applying their personal judgment to it is, to be blunt, hooey. That may be a way to arrive at a testable conjecture but without the conjecture passing a test of its predictive power (e.g. a rigorous epidemiological study) it remains nothing but a bald, personal opinion with no foundation beyond the ipse dixit of the expert who induced it.

David Oliver is managing partner of the Houston office of Vorys, Sater, Seymour and Pease. His practice focuses on civil litigation involving allegations of injuries due to exposure to chemicals or pharmaceuticals; he holds degrees in both chemistry and biology. Read more of David’s work on his blog: Mass Torts: State of the Art. You may contact David through the firm’s website at www.vorys.com.

On August 17, 2011, the Oil & Gas Law Brief reported that a West Virginia judge had entered an order striking down a ban on hydraulic fracturing enacted by the City of Morgantown. The judge ruled that West Virginia statutes make oil and gas regulation exclusively a matter of state law, and that local governments do not have authority to enact additional regulations. That judgment is now final.

The City of Morgantown apparently had planned to appeal, but media reports indicate that the City inadvertently missed the 30-day deadline to file a notice of appeal. The 30-day deadline is found in West Virginia Rule of Civil Procedure 73, which was amended in December 2010 to add a subsection (c) that requires a party to file a notice of appeal within 30 days of the judgment being appealed. Previously, parties "perfected" an appeal by taking certain steps within four months of a judgment. One report quoted the City Manager as saying that he thought the City had four months to appeal, and quoted the City's lead counsel for the litigation as saying, "[W]e overlooked the recent amendment, and I take responsibility for that."

In trial or deposition I have been asked the question: “are you requiring scientific or legal certainty.” This question arises in the context of a causal assessment in, for example, a toxic tort or pharmaceutical liability claim. The question is designed to be a “gotcha.” Why? Because attorneys believe that scientific certainty is more rigorous (i.e. 95%) than legal certainty (more probable than not or 51%.) There is truth to that belief, but the question actually compares apples to oranges. Scientific certainty is needed for one aspect of an analysis. Legal certainty is required for a different aspect. Thus, far from a “gotcha,” this question reflects the attorney’s naivete regarding the application of probabilities to the respective issues–scientific versus legal.

Scientific “certainties” (actually scientists don’t use this legal term of art, but I shall explain it from an attorney’s point of view), is a reflection of the quality of the underlying data. In other words, are the studies that underlie the claim at issue statistically significant. Is there a scientifically-accepted likelihood that an observed relationship is not simply due to chance. That’s where the 95% number comes from. A p value of 0.05, by convention the cutoff between statistically significant and not, is that 95% likelihood. But that percentage applies only to the quality of the science used to assess causality in a claim. If, in fact, a study showed only a 51% likelihood of reflecting a true, rather than a chance relationship, no scientist, no regulatory body, no one who reviews scientific data would consider that study supportive of a causal relationship. In the words of legalese: “the relevant scientific community would consider the use of such a study methodologically improper.”

By contrast, the legal issue of more probable than not or reasonable medical/scientific certainty asks an entirely different question. First, it assumes that there is recognized and accepted scientific support for a position. In other words, it first requires that there are studies which meet the generally accepted scientific test of 95%. Then it asks, is it more probable than not that X caused Y in this case. It is the answer to that legal question–the more probable than not question–that requires only a 51% assurance.

As an example. Assume that chemical X has been strongly connected scientifically to disease Y. Scientific studies have shown (with a p value of 0.05 or 95% confidence) that X is connected to Y. I have assumed for this argument that there are also sufficient numbers of studies and that they have also shown meaningful attributable risks. Now assume that we have a claimant who has been exposed to X and has developed disease Y. In that case general causation–that X can cause Y–is scientifically satisfied. The next question–did it actually cause this person’s disease requires other elements. Sufficiency of dose, correct timing of exposure and others are among them. If those, too, are affirmatively satisfied, then an expert might state that it is more probable than not (greater than 51%) that this claimants disease Y was caused by agent X. On the other hand, if the studies linking X to Y were not available, or if they were not, by scientific standards (95%), positively connected, then one could not even approach the legal causation question, because there would be no scientific foundation upon which to base it. Said another way: if X has not been shown scientifically (using scientific measures of statistical significance) to be connected to disease Y then a claim that disease Y came from exposure to agent X, has neither scientific nor legal merit.

Therefore, scientific certainty (step 1) is, indeed, more rigorous than the ultimate test of legal certainty (step2). However one doesn’t get to step 2 without first satisfying step 1. Thus, both scientific and legal certainty are part of a causal assessment. And, asking a witness whether his test was one of legal or scientific certainty makes no sense. The proper answer is “both, each for a different component of the analysis.”